P.K. VIJAYAN Vs. T.A. JAYAPRABHA

JUDGEMENT

(1.) This original petition filed under Article 227 of the Constitution of India comes up before us pursuant to an order of reference passed by a learned Single Judge. Parties to this proceedings are husband and wife. Wife (respondent -plaintiff) filed O.S. No. 82 of 1997 before the Court of Subordinate Judge, Thiruvalla against her husband (petitioner -defendant) for return of Rs. 50,000/ - allegedly entrusted with him at the time of their marriage and also for the value of her ornaments, said to have been appropriated by him. Learned trial Judge dismissed the suit. An appeal was brought up before this Court as A.S. No. 93 of 2000. A Division Bench of this Court allowed the appeal in part and remanded the matter to the trial court for fresh disposal. This Court confirmed the finding of trial court that the plaintiff failed to establish that the defendant had received Rs. 50,000/ - at the time of marriage. However, the Division Bench was of the view that the trial court's denial of the plaintiff's claim for value of ornaments as time barred was unsustainable. The trial court did not consider that the ornaments were entrusted by the plaintiff with the defendant during their matrimony and therefore latter was held to be a trustee for the former. So much so, Sec. 10 of the Limitation Act, 1963 would operate against the plea of limitation. That aspect was not considered by the court below. Hence, after allowing the appeal in part, the judgment and decree of the trial court to that extent was set aside. In spite of having sufficient evidence before the court below on those matters, it decided the case on a pure question of law Hence this Court directed the trial court to reconsider the issue elaborately on the basis of available evidence.

(2.) After remand, the respondent herein (plaintiff) filed a petition under Sec. 151 of the Code of Civil Procedure, 1908 (in short, "Code") requesting the trial court to transfer the case to the Family Court, which was established for the area pending the appeal. Petitioner (defendant) opposed this contention. Nevertheless, the court below allowed the application filed by the respondent and ordered to return the plaint to be presented before the Family Court, Thiruvala. It is further directed that the records should be transmitted to the Family Court. These findings are assailed in this original petition.

(3.) Learned Single Judge, on finding that the remand order was passed by a Division Bench, was of the opinion that the matter should be referred to a co -equal bench. The Registry, after taking orders from the Hon'ble Chief Justice, placed the case before us.